The creation of the ICC perhaps constitutes the most significant reform of international law since 1945. It gives teeth to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.

As of March 2010[update], 111 states are members of the Court,[7][8][9] and a further 37 countries, including Russia and the United States have signed but not ratified the Rome Statute.[7] A number of states, including China and India are critical of the court and have not signed the Rome Statute. The ICC can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council.[10] The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.[11][12] Primary responsibility to investigate and punish crimes is therefore left to individual states.[13]

History

The establishment of an international tribunal to judge political leaders accused of war crimes was first made during the Paris Peace Conference in 1919 by the Commission of Responsibilities. The issue was addressed again at conference held in Geneva under the auspices of the League of Nations on November 1–16, 1937, but no practical results followed. The United Nations states that the General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II in 1948, following the Nuremberg and Tokyo Tribunals.[3] At the request of the General Assembly, the International Law Commission drafted two statutes by the early 1950s but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.[16]

The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached 60.[4] The Statute legally came into force on 1 July 2002,[4] and the ICC can only prosecute crimes committed after that date.[5] The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the court on 1 March 2003.[23] The court issued its first arrest warrants on 8 July 2005,[24] and the first pre-trial hearings were held in 2006.[25]

Membership

The States Parties to the Rome Statute of the International Criminal Court are those countries that have ratified or acceded to the Rome Statute, the treaty that established the International Criminal Court. As of 24 March 2010, 111 states are members of the Court.[1] A further 37 states have signed but not ratified the treaty,[2] and several states that have not signed the treaty have indicated their intention to accede to it.

The Court can automatically exercise jurisdiction over crimes committed on the territory of a State Party or by a national of a State Party. States Parties must co-operate with the Court, including surrendering suspects when requested to do so by the Court.

States Parties are entitled to participate and vote in proceedings of the Assembly of States Parties, which is the Court’s governing body.

As of March 2010, 111 countries have joined the court, including nearly all of Europe and South America, and roughly half the countries in Africa.[7][8][9] However, these countries only account for a minority of the world’s population.[26]

A further 37 states have signed but not ratified the Rome Statute;[7] the law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty.[27] Three of these states — Israel, Sudan and the United States — have “unsigned” the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.[7][28][29]

Jurisdiction

Crimes within the jurisdiction of the Court

Article 5 of the Rome Statute grants the court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.[2][3] In June 2010, the ICC’s first review conference in Kampala, Uganda expanded the definition of “crimes of aggression” and the ICC’s jurisdiction over them. The ICC will not be allowed to prosecute for this crime until at least 2017. [2]

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the court’s limited resources.[3] India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated.[30] India has expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”[30]

Some commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.[31]

A Review Conference is due to take place in the first half of 2010.[32] Among other things, the conference will review the list of crimes contained in Article 5.[33] The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.[34]

Territorial jurisdiction

During the negotiations that led to the Rome Statute, a large number of states argued that the court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States.[35] A compromise was reached, allowing the court to exercise jurisdiction only under the following limited circumstances:

where the person accused of committing a crime is a national of a state party (or where the person’s state has accepted the jurisdiction of the court);

where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the court); or

where a situation is referred to the court by the UN Security Council.[10]

Temporal jurisdiction

The court’s jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.[5]

Complementarity

Temporary Headquarters of the ICC in Den Haag

The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:

“(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.”[11]

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:

“(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”[12]

Structure

The ICC is governed by an Assembly of States Parties.[36] The court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.[37]

Assembly of States Parties

The court’s management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party.[38] Each state party has one vote and “every effort” has to be made to reach decisions by consensus.[38] If consensus cannot be reached, decisions are made by vote.[38] The Assembly is presided over by a president and two vice-presidents, who are elected by the members to three-year terms.

The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require.[38] Sessions are open to observer states and non-governmental organisations.[39]

The Assembly elects the judges and prosecutors, decides the court’s budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the court.[36][38] Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who “is found to have committed serious misconduct or a serious breach of his or her duties” or “is unable to exercise the functions required by this Statute”.[40]

The states parties cannot interfere with the judicial functions of the court.[41] Disputes concerning individual cases are settled by the Judicial Divisions.[41]

At the seventh session of the Assembly of States Parties in November 2008, the Assembly decided that the Review Conference of the Rome Statute shall be held in Kampala, Uganda, during the first semester of 2010.[42]

Judicial Divisions

The Judicial Divisions consist of the 18 judges of the court, organized into three divisions — the Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the court.[46] Judges are elected to the court by the Assembly of States Parties.[46] They serve nine-year terms and are not generally eligible for re-election.[46] All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state.[47] They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.[47]

The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from “any case in which his or her impartiality might reasonably be doubted on any ground”.[48] Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges.[48] A judge may be removed from office if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions.[40] The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.[40]

Office of the Prosecutor

The Office of the Prosecutor is responsible for conducting investigations and prosecutions.[13] It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors.[37] The Rome Statute provides that the Office of the Prosecutor shall act independently;[49] as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.[13]

The Prosecutor may open an investigation under three circumstances:[13]

when the Pre-Trial Chamber authorises him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.

Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case “in which their impartiality might reasonably be doubted on any ground”.[49] Requests for the disqualification of prosecutors are decided by the Appeals Division.[49] A prosecutor may be removed from office by an absolute majority of the states parties if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions.[40] However, critics of the court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.[50]Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.[51]

As of October 2009, the Prosecutor is Luis Moreno Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003[52] for a term of nine years.[13]

Registry

The Registry is responsible for the non-judicial aspects of the administration and servicing of the court.[53] This includes, among other things, “the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel”.[53] The Registry is headed by the Registrar, who is elected by the judges to a five-year term.[37] The current Registrar is Silvana Arbia, who was elected on 28 February 2009.

Headquarters, offices and detention unit

The official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere.[6][54] The court is currently housed in interim premises on the eastern edge of The Hague.[55] The court intends to construct permanent premises in Alexanderkazerne, to the north of The Hague.[55][56]

The ICC also maintains a liaison office in New York[57] and field offices in places where it conducts its activities.[58] As of 18 October 2007, the court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.[58]

Procedure

Rights of the accused

The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,[63] and establishes certain rights of the accused and persons during investigations.[64] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

Some argue that the protections offered by the ICC are insufficient. According to one conservative think-tank, the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one’s peers, protection from double jeopardy, and the right to confront one’s accusers.”[29] The Human Rights Watch argues that the ICC standards are sufficient, saying, “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.[65] According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”[66]

To ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.[67][68] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.[69] However, Thomas Lubanga’s defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.[70]

Victim participation and reparations

One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims.[71][72] For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.

Participation before the Court may occur at various stages of proceedings and may take different forms. Although it will be up to the judges to give directions as to the timing and manner of participation.

Participation in the Court’s proceedings will in most cases take place through a legal representative and will be conducted ”in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial”.

The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice.

Article 43(6) establishes a Victims and Witnesses Unit to provide “protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.”[73] Article 68 sets out procedures for the “Protection of the victims and witnesses and their participation in the proceedings.”[74] The court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.[75] Article 79 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.[76]

Participation of victims in proceedings

The Rome Statute contains provisions which enable victims to participate in all stages of the proceedings before the Court.

Hence victims may file submissions before the Pre-Trial Chamber when the Prosecutor requests its authorisation to investigate. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases.

More generally, victims are entitled to file submissions before the Court chambers at the pre-trial stage, during the proceedings or at the appeal stage.

The rules of procedure and evidence stipulate the time for victim participation in proceedings before the Court. They must send a written application to the Court Registrar and more precisely to the Victims’ Participation and Reparation Section, which must submit the application to the competent Chamber which decides on the arrangements for the victims’ participation in the proceedings. The Chamber may reject the application if it considers that the person is not a victim. Individuals who wish to make applications to participate in proceedings before the Court must therefore provide evidence proving they are victims of crimes which come under the competence of the Court in the proceedings commenced before it. The Section prepared standard forms and a booklet to make it easier for victims to file their petition to participate in the proceedings.

It should be stipulated that a petition may be made by a person acting with the consent of the victim, or in their name when the victim is a child or if any disability makes this necessary.

Victims are free to choose their legal representative who must be equally as qualified as the counsel for the defence (this may be a lawyer or person with experience as a judge or prosecutor) and be fluent in one of the Court’s two working languages (English or French).

To ensure efficient proceedings, particularly in cases with many victims, the competent Chamber may ask victims to choose a shared legal representative. If the victims are unable to appoint one, the Chamber may ask the Registrar to appoint one or more shared legal representatives. The Victims’ Participation and Reparation Section is responsible for assisting victims with the organisation of their legal representation before the Court. When a victim or a group of victims does not have the means to pay for a shared legal representative appointed by the Court, they may request financial aid from the Court to pay counsel. Counsel may participate in the proceedings before the Court by filing submissions and attending the hearings.

The Registry, and within it the Victims’ Participation and Reparation Section, has many obligations with regard to notification of the proceedings to the victims to keep them fully informed of progress. Thus, it is stipulated that the Section must notify victims, who have communicated with the Court in a given case or situation, of any decisions by the Prosecutor not to open an investigation or not to commence a prosecution, so that these victims can file submissions before the Pre-Trial Chamber responsible for checking the decisions taken by the Prosecutor under the conditions laid down in the Statute. The same notification is required before the confirmation hearing in the Pre-Trial Chamber to allow the victims to file all the submissions they require. All decisions taken by the Court are then notified to the victims who participated in the proceedings or to their counsel. The Victims’ Participation and Reparation Section has wide discretion to use all possible means to give adequate publicity to the proceedings before the Court (local media, requests for co-operation sent to Governments, aid requested from NGOs or other means).

Reparation for victims

For the first time in the history of humanity, an international court has the power to order an individual to pay reparation to another individual; it is also the first time that an international criminal court has had such power.

Pursuant to article 75, the Court may lay down the principles for reparation for victims, which may include restitution, indemnification and rehabilitation. On this point, the Rome Statute of the International Criminal Court has benefited from all the work carried out with regard to victims, in particular within the United Nations.

The Court must also enter an order against a convicted person stating the appropriate reparation for the victims or their beneficiaries. This reparation may also take the form of restitution, indemnification or rehabilitation. The Court may order this reparation to be paid through the Trust Fund for Victims, which was set up by the Assembly of States Parties in September 2002.

To be able to apply for reparation, victims have to file a written application with the Registry, which must contain the evidence laid down in Rule 94 of the Rules of Procedure and Evidence. The Victims’ Participation and Reparation Section prepared standard forms to make this easier for victims. They may also apply for protective measures for the purposes of confiscating property from the persons prosecuted.

The Victims’ Participation and Reparation Section is responsible for giving all appropriate publicity to these reparation proceedings to enable victims to make their applications. These proceedings take place after the person prosecuted has been declared guilty of the alleged facts.

The Court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. If the Court decides to order collective reparation, it may order that reparation to be made through the Victims’ Fund and the reparation may then also be paid to an inter-governmental, international or national organisation.

Co-operation by states not party to Rome Statute

One of the principles of international law is that a treaty does not create either obligations or rights for third states (pacta tertiis nec nocent nec prosunt) without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties.[77] The co-operation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature.[78] However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases.[79] When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them.[80] Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I,[81] which reflects the absolute nature of IHL.[82] Although the wording of the Conventions might not be precise as to what steps have to be taken, it has been argued that it at least requires non-party states to make an effort not to block actions of ICC in response to serious violations of those Conventions.[79] In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute[83] that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute.[79] Taking into account the experience of the ICTY (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states.[79] As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to co-operate after it has entered into an ad hoc arrangement or an agreement with the court.[84]

Amnesties and national reconciliation processes

It is unclear to what extent the ICC is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.[85] Article 16 of the Rome Statute allows the Security Council to prevent the court from investigating or prosecuting a case,[86] and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”.[87] Former ICC President Philippe Kirsch has said that “some limited amnesties may be compatible” with a country’s obligations genuinely to investigate or prosecute under the statute.[85]

It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord’s Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda.[88][89] Czech politician Marek Benda argues that “the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs”.[90] However, the United Nations[91] and the International Committee of the Red Cross[92] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

Relationship with the United Nations

Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the court situations that would not otherwise fall under the court’s jurisdiction (as it did in relation to the situation in Darfur, which the court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the court to defer from investigating a case for a period of 12 months.[86] Such a deferral may be renewed indefinitely by the Security Council.

The court cooperates with the UN in many different areas, including the exchange of information and logistical support.[93] The court reports to the UN each year on its activities,[93][94] and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.[95][96]